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THE RENVOI DOCTRINE IN THE CONFLICT 

OF LAWS— MEANING OF "THE LAW 

OF A COUNTRY" 

ERNEST G. LORENZEN 
Professor of Law, Yale University- 



Some years ago in writing on the present subject the author made 
the statement that the renvoi doctrine was no part of the conflict of 
laws of the United States. 1 In the light of certain more recent deci- 
sions or judicial utterances the question may properly be asked again: 
Should the courts of the United States adopt the renvoi theory in the 
conflict of laws ? Although no discussion of the problem is yet to be 
found in any American decision, there are cases in which the renvoi 
doctrine has been sanctioned either expressly or by necessary impli- 
cation. The case of Guernsey v. The Imperial Bank of Canada 2 and 
the case of Lando v. Lando 3 may serve as illustrations. In the former 
case an action was brought in the Circuit Court of the United States 
for the District of Wyoming against the indorser of a promissory note. 
The note was made and indorsed in Illinois, but it was payable in Can- 
ada. Presentment, demand and protest were made, and notice of dis- 
honor was given in compliance with the law of Canada; but the 
indorser claimed that the notice would have been insufficient to charge 
the indorser if the note had been payable in Illinois. The court below 
held that the notice was good and rendered judgment against the 
indorser. The latter's counsel insisted that the ruling was error on 
the ground that the sufficiency of the notice was governed by the law 
of the place of indorsement and not by the law of the place of pay- 
ment. On appeal, the learned court made the following remarks 
concerning the above contention : 

"To this contention there is a short and conclusive answer. The 
place of the indorsement was the state of Illinois. The law of that 
state was, when the indorsement was made, and it still is, that when 
commercial paper is indorsed in one jurisdiction and is payable in 



1 The Renvoi Theory and the Application of Foreign Law (1910) 10 Columbia 

L. Rev. 327, 344- ...... 

The Annuaire de I'Institut de droit international will be cited in this article 
as Annuaike ; the Journal du droit international prive, as Clunet ; the Revue 
de droit international prive" et droit penal international, as Darras; the Zeit- 
schrift fur internationales Privat- und Strafrecht, as Niemeyer. 

' (1911, C. C. A. 8 C.) 188 Fed. 300. 

* (1910) 112 Minn. 257, 127 N. W. 1125. 

[509] 



5io YALE LAW JOURNAL 

another the law of the place where it is payable governs the time and 
mode of presentment for payment, the manner of protest, and the 
time and manner of giving notice of dishonor, and the law of the place 
of indorsement is inapplicable to them. Wooley v. Lyon, 117 111. 248, 
250, 6 N. E. 885, 886, 57 Am. Rep. 867. If, therefore, as counsel con- 
tend, the law of the place where the indorsement was made, the law of 
Illinois, governs the sufficiency of the notice of dishonor in this case, 
that notice was good, for it was sufficient under the law of Canada 
where the note was payable, and the law of Illinois was that in a case 
of this character the law of the place where the note was payable gov- 
erned the time and manner of giving the notice of dishonor."* 

The statement quoted assumes that if the law of the place of 
indorsement (Illinois) must be satisfied in the matter of notice, and 
the law of the place of indorsement requires the notice to comply with 
the law of the place of payment (Canada), a notice sufficient under the 
law of Canada would be good. The reference to "the law of the state 
of Illinois" is understood thus, not as covering merely the ordinary law 
of Illinois governing notice, but as incorporating the law of Illinois 
as a whole, inclusive of its rules of the conflict of laws. 

The decision in the case of Lando v. Lando* rests upon the same 
assumption. The facts of the case were the following: Ida Oberg 
and David H. Lando, residents of Minnesota, were married at Ham- 
burg, Germany, by a person who was not authorized by the law of 
Germany to join persons in marriage, but whom Ida Oberg believed 
in good faith to be a minister of the Gospel. The parties in question 
afterwards lived as husband and wife in Vienna, where they held 
themselves out as husband and wife, and where they were generally so 
regarded by their friends and acquaintances. David H. Lando died 
before returning to this country. Ida Lando claimed to be entitled 
to appointment as administratrix of his estate and thus put in issue 
the validity of their marriage. The supreme court of Minnesota was 
in doubt as to the meaning of the German rules of the conflict of laws 
governing the validity of marriage; but, applying the rule of inter- 
pretation semper praesumitur pro matrimonia, it reached the con- 
clusion that the marriage would be sustained in Germany by virtue of 
the national law of the parties, that is, the law of Minnesota. 

So far as the reasoning of the court bears upon the question of the 
conflict of laws, Justice Jaggard contented himself with the following 
statement : 

"1. The validity of the marriage is to be determined by the law of 
Germany, where it was celebrated. It is a generally accepted principle 
of interstate and international law that the validity or invalidity of a 
marriage is to be determined by the law of the place where the cere- 
mony is performed; that a marriage legal where solemnized is valid 
everywhere; and that a marriage void where it is celebrated is void 

' (1911) 188 Fed. 300, 301. The italics are those of the present writer. 
* (1910) 112 Minn. 257, 127 N. W. 1125. 



RENVOI IN THE CONFLICT OF LAWS 5" 

everywhere. If the law of the place of trial were to control, a mar- 
riage might be valid in one state and invalid in another. It is 
obviously essential to the welfare of mankind that a marriage valid 
in one place should be valid everywhere. . . . 

"This rule applies to cases where the parties attempting to marry 
are mere sojourners in the place where the marriage ceremony is 
claimed to have been performed. ... 

"2. The decisive question in the case is whether the parties were 
married in accordance with the German law. The court does not 
take judicial cognizance of the law on this point. It is elementary 
that foreign laws must be pleaded and proved like any other fact. . . ." 

The court thereupon discusses the German law as it was stipulated 
by the parties and concludes its opinion with the following : 

"We are unable to perceive why the presumption of validity of an 
attempted marriage should be denied to these parties, both innocent 
of moral wrong, and the presumption of innocence extended to the 
most confirmed recidivist. Certainly the considerations relied upon 
to repel that presumption are not clear nor satisfactory, nor at all 
conclusive. We are therefore constrained to hold that the marriage 
in question, conforming as it did to the Minnesota law, conformed also 
to the German law as its translation has been here agreed upon." 

Not a word is said in the opinion about the fact that the term "Ger- 
man law" may mean either the ordinary German law of marriage, or 
the German law inclusive of its rules of the conflict of laws. The 
learned court assumes that the Minnesota law incorporates the Ger- 
man law as a whole. 

II 

The question raised by the above cases is one which has been greatly 
mooted among the writers on the conflict of laws. It is known as 
the problem of renvoi. 6 

The recognition of the renvoi theory implies that the rules of the 
conflict of laws are to be understood as incorporating not only the 
ordinary or internal law of the foreign state or country, but its 
rules of the conflict of laws as well. According to this theory "the 
law of a country" means the whole of its law. 

Let us consider briefly the modes of reasoning which have led cer- 
tain courts and text-writers to support this doctrine. The purpose of 
this article will be served best if the renvoi theory be presented only 
in the two principal forms in which it has appeared. One is the 
theory which we shall call, for convenience, the "theory of renvoi 

' The literature may be found in an appendix to this article. 

In a recent work by Emil Potu, La question du renvoi en droit international 
privi (Paris, 1913), a complete list is given of all the authors who have expressed 
themselves on the question of renvoi, with an indication of their attitude in the 
matter. A similar attempt was made some years ago by the author of this 
article: see 10 Columbia L. Rev. 190, 194, 196. 



Si2 YALE LAW JOURNAL 

proper." The other is known as the "mutual disclaimer of jurisdic- 
tion theory." As the latter theory has the weighty support of West- 
lake, it will be considered first. 

MUTUAL DISCLAIMER OF JURISDICTION THEORY 

According to von Bar, who was the first to favor renvoi in this 
form, all rules of the conflict of laws are in reality rules by which one 
state, for the purpose of administering private law, defines its own 
jurisdiction and the jurisdiction of foreign states. Starting from this 
premise he reasoned as follows : 

"Due respect for the sovereignty of the state of X should forbid the 
state of Y to ascribe to the state of X a jurisdiction which the state of 
X declines. Inasmuch as Italy applies the principle of nationality to 
the determination of capacity, England has no right to say that the 
capacity of an Englishman domiciled in Italy should be determined by 
the internal law of Italy relating to capacity. Italy having declined 
jurisdiction in the case, England must accept the reference back to its 
own law and determine the capacity of the Englishman in question 
by English law. If the renvoi is not accepted and the question is 
decided according to the internal law of Italy, Italian law is applied 
to cases for which it is not enacted. In so doing England would 
usurp the function of the Italian legislator, filling an assumed gap in 
the Italian law, directly contrary to the will of the Italian legislator." 7 

Von Bar presented his views at the meeting of the Institute of 
International Law, at Neuchatel, in 1900, in the form of the follow- 
ing theses : 8 

"(1) Every court shall observe the law of its country as regards 
the application of foreign laws. 

(2) Provided that no express provision to the contrary exists, 
the court shall respect : 

(a) The provision of a foreign law which disclaims the right to 
bind its nationals abroad as regards their personal statute, and desires 
that said personal statute shall be determined by the law of the domi- 
cile, or even by the law of the place where the act in question occurred. 

(b) The decision of two or more foreign systems of law, provided 
it be certain that one of them is necessarily competent, which agree in 
attributing the determination of a question to the same system of law." 

Westlake originally rejected the renvoi doctrine except in special 
cases. 9 He changed his view, however, before long and accepted 
the renvoi theory fully. The reasoning which led Westlake to this 
change of attitude is similar to the one employed by von Bar, but it 
is developed in a clearer and more logical manner. It was first 



' See von Bar, 8 Niemeyer, 177-188. Also in 2 Holtzendorff, Encyclopadie der 
Rechtswissenschaft (6th ed. by Kohler) 19. 
' 18 Annuaire, 41. 
* 17 Annuaire, 31, 34- 



RENVOI IN THE CONFLICT OF LAWS 5 '3 

expressed by Westlake in a note addressed to the Institute of Inter- 
national Law. 10 In substance it is as follows : 

"A distinction between internal law and international law belongs 
only to the science of law but does not actually exist. Suppose a leg- 
islator says (a) that the capacity to make a will shall be acquired at the 
age of 19; (b) that the capacity of persons shall be governed by their 
national law. Rule (a) would have no meaning without rule (&). 
Whose testamentary capacity is acquired at 19? No answer can be 
given without the aid of rule (b) fixing the category of persons whose 
capacity the legislator believes he has a right to fix. According to 
(b), (a) says that the capacity of the legislator's subjects is acquired at 
19, but says nothing regarding the capacity of foreigners domiciled 
within the territory. If rule (b) had said that capacity shall be 
governed by the law of domicile, (a) would have enacted that the 
capacity of persons domiciled within the territory of the legislator is 
acquired at 19, but would have said nothing regarding the capacity 
of his own subjects domiciled abroad. 

"In whatever terms rule (b) may be expressed, its true sense will 
be limited to the cases which, according to the ideas of the legislator, 
fall within his authority. There are normal cases which the legislator 
deems to belong to him and with regard to which he intends to legis- 
late. The Danish legislator, for example, who attaches a decisive 
importance to domicile, will regard as the normal case in the matter 
under discussion a person domiciled in Denmark for whom he fixes 
the age at 21. To the Italian legislator, on the other hand, who 
attaches a decisive importance to nationality, the normal case will 
be that of an Italian subject; and for him he fixes the age at 19. 

"A legislator who regards a certain case as normal will regard 
analogous cases as being normal for other legislators and as belonging 
to them. A Danish legislator will direct his judges, therefore, to 
recognize persons domiciled in a foreign country as capable or inca- 
pable of making a will in accordance with the law of their domicile, 
and the Italian legislator will regard foreigners as having such 
capacity to make a will as may have been conferred upon them by 
their national legislator. 

"By means of this second step the Danish legislator provides for 
persons domiciled in a country whose legislation in the matter is also 
based on the lex domicilii. But it does not provide a rule for persons 
domiciled in a country such as Italy, whose legislation is silent as to 
the capacity of persons domiciled in such jurisdiction. 

"In the same way the Italian legislator provides by this second 
step for the subjects of a country the legislation of which, like that 
of France, is based likewise on the principle of nationality, but it lays 
down no rule for the subjects of a state the legislation of which, like 
that of Denmark, makes no provision for its own subjects. 

"A third step is necessary in these cases, namely, to direct the judge 
to apply in the absence of another law, the normal law. The Dane 
domiciled in Italy will be deemed in Denmark, therefore, to have 
reached the age of testamentary capacity only at 21 ; but in Italy he 
will be deemed to have reached it at the age of 19. 

"The case known in Germany by the name of Weiterverweisung 
remains to be considered, that is, where the law incorporated by 



' 18 Ibid. 35-40. 



Si4 YALE LAW JOURNAL 

reference would have the law of a third state applied. Suppose 
two citizens of New York (capacity to contract being governed 
there by the lex loci) enter into a contract in Italy, being at 
that time domiciled in France, and that litigation with respect thereto 
arises in England. The lex fori (England), applying the law of 
the domicile at the time of the making of the contract to determine 
the capacity of the parties to enter it, will refer the matter to France. 
France having adopted the principle of nationality with respect to 
capacity will answer: 'The case does not belong to me; it belongs 
to the New York legislator.' Should the English judge, following 
the direction of the French law, ask the New York law, it would tell 
him that, in its opinion the case did not belong to New York, but 
(under the rule lex loci) to the Italian legislator. 

"But rule (b) does not require the English judge to follow the 
direction given by France to consult New York law. Instead, he 
should apply the normal law of his own country, rule (a). The 
judge must determine in the first instance to which country the legal 
relationship presented to him belongs ; if the law of the latter, based 
upon another system regarding the conflict of laws, says that the case 
does not belong to it, there is no further reference to the law of a 
third state." 

Westlake discusses the problem also in his treatise on Private Inter- 
national Law, Chapter II, 11 where he states the problem in a some- 
what different form : 

"The matter is so cardinal in relation to the real meaning of pri- 
vate international law that, at the risk of being tedious, I will put it 
again in different language, but with a difference only of language. 
The English or Danish judge cannot hold the lad of nineteen to 
have attained his age unless he is prepared to answer the question, 
what lawgiver made him of age? That is independent of all views 
about the conflict of laws, for it results from the nature of law itself. 
Now the Italian code does indeed seem to lay down a rule about the 
status and capacity of all persons without exception, but this is only 
a misleading generality, for no one can doubt that the principle of 
nationality adopted in Italy prevents the Italian lawgiver from claim- 
ing authority over the capacity of a British or Danish subject. The 
English or Danish judge therefore cannot say that the Italian law- 
giver made the de cujus of age at nineteen: Then, it will be asked, 
who is the lawgiver that keeps him a minor till he has attained 
twenty-one? And the answer is, the British or Danish lawgiver; for 
no one can doubt his authority over the capacity of his subjects if he 
chooses to exercise it, and the Italian lawgiver's disclaimer removes 
the objection which he would have felt to exercising it in the case of 
one of his subjects who was not domiciled in the British dominions or 
in Denmark. The result will coincide with that given by the renvoi, 
properly limited so as to avoid an endless series of references to and 
fro, but its real base lies, not in the doctrine of renvoi, but in the duty 
of considering the essential nature of the legal relation in question in 
any concrete case, and the essential meaning of the rules of private 
international law adopted in the different countries concerned." 



(5th ed.) 33. 



RENVOI IN THE CONFLICT OF LAWS 5*5 

The mutual disclaimer of jurisdiction theory of von Bar and West- 
lake, contrary to the theory of renvoi proper, necessarily leads to the 
application of the internal law of the forum in practically all cases in 
which the rules of the conflict of laws of the forum differ from those 
of the country whose law has prima facie been adopted and incorpo- 
rated. Whenever there is a diversity in the rules of the conflict of 
laws of the two countries concerned, it means, according to this theory, 
that there is no internal rule in either country actually applicable to 
the case. In reality, there is a gap in the law which the judge of the 
forum, who is obliged to decide the case in some manner, is forced 
to fill up by applying his own internal law. As Westlake points out, 
there can be no question under this theory of a forward reference or 
Weiterverweisung. The judge is not to regard himself as sitting in 
the foreign country, as he is required to do under the theory of renvoi 
proper in its wider form ; nor is he to follow the directions of the for- 
eign law. All he is asked to do by the law of the forum is to ascertain 
whether the law of the foreign country which is incorporated claims 
jurisdiction over the case. If it does not, its law has nothing further 
to say in the matter; the law of the forum directs its judge in such 
event to apply its own internal law. 

Von Bar would restrict his renvoi theory, as appears from his 
thesis No. 2 (a) quoted above, 12 to the cases where the personal stat- 
ute is involved, that is, where the law of nationality comes into col- 
lision with the law of domicile or with the law of the place where the 
act in question occurred. Westlake, on the other hand, would apply 
the above reasoning to all cases in which divergent rules of the conflict 
of laws of the countries in question amount to a mutual disclaimer of 
jurisdiction. Such a disclaimer would follow in all cases where the 
rules of the conflict of laws differ, unless such difference arises from 
the fact that a foreign law leaves it optional with the parties whether 
they will be governed by such foreign law or by that of another state, 
such option not being allowed by the law of the forum. Let us 
assume, for example, that a question arises in the state of X in 
respect to the validity of a conveyance of land in the state of Y ; the 
deed being executed in the state of Z in the form prescribed by the 
law of Z, but not in the form required by the local law of the state of 
Y. Let us assume also that the law of the state of Y authorizes the 
execution of deeds either in the form customary in the place of 
execution, or in that prescribed by the law of the situs. Should the 
courts of the state of X recognize the validity of the deed? West- 
lake's reasoning would not include this case, for the law of the state 
of Y as the law of the situs, which the law of the state of X has incor- 
porated, does not disclaim jurisdiction. All it has done is to facilitate 



" Supra, p. 512. 



516 YALE LAW JOURNAL 

the formal execution of deeds relating to land within its territory by 
giving an option or choice. 

One of the rapporteurs on the question of renvoi before the Institute 
of International Law, Professor Buzzati, 13 raised the following objec- 
tions to renvoi in the form suggested by von Bar and Westlake : 

(i) The starting point, namely, that a legislator adopting the law 
of domicile to determine capacity is not interested in his subjects 
abroad and does not legislate with reference to them, and that a legis- 
lator adopting the law of nationality in his system of the conflict of 
laws is not interested in foreigners domiciled within his territory and 
does not legislate with respect to them, rests upon an erroneous 
assumption. It is absurd to say that the provisions of the Italian Civil 
Code do not apply to an Englishman who is domiciled in Italy. 

(2) Neither von Bar nor Westlake denies the competency of a 
state to extend its jurisdiction over a matter which another state 
claims for itself. And yet, their theory rests upon the fundamental 
proposition that due respect for the state of X makes it improper for 
the state of Y to assign to the state of X a jurisdiction which the state 
of X declines. Just as if it were not a greater offense to deprive the 
state of X of a jurisdiction which it claims than it would be to assign 
to it a jurisdiction which it does not claim. 

(3) The fundamental error of the theory consists in the assump- 
tion that it is possible for the state of Y to bring its own jurisdiction 
into perfect accord with that of other states so that there will be no 
infringement upon their jurisdiction. But this is impossible and will 
remain so as long as the states have different rules relating to the 
conflict of laws. Each state is, therefore, obliged to adopt its own 
rules without deferring to those of other states. 

The first objection mentioned by Buzzati is elaborated more fully 
by Kahn. 

"According to this writer the thought of the legislator in directing 
the application of foreign law is about as follows : Though I regard 
my law as the better and the more reasonable, it is generally 
more important to aim at international uniformity of treatment, 
even at the risk that objectively the result is not so good. If we 
should desire to apply our law exclusively in those cases also in which 
the legal relationship has a much more important connection with 
foreign countries, the advantage gained from die application of our 
better law would be out of proportion to the disadvantages with respect 
to international uncertainty of law resulting therefrom. . . . Just as 
I treat foreign law, so shall I also be treated in general. If I expect 
and demand that my law shall be taken into consideration by other 
countries, I must as far as possible admit the application of foreign 
law in analogous cases. 

"Buzzati, Nochmals die Ruckverweisung im internationalen Privatrecht, 8 
Niemeyer, 449. 4S1 -4S 2 - 



RENVOI IN THE CONFLICT OF LAWS 517 

"We see, therefore, that the rule of private international law, how- 
ever closely it may be connected with the rule of substantive law, is, 
nevertheless, by no means a pure expression of the applicability of our 
law; that the legislator establishing a certain point of contact for 
his private international law is far from asserting that he has no sub- 
stantive law for other cases. 

"The legislator determining the right of succession according to 
the domicile of the deceased says merely : 'For me, domicile is a more 
important point of contact than nationality or any other principle. I 
would gladly apply my rules concerning succession also to my sub- 
jects residing abroad, to all property situated in my territory, etc. 
Yet I know that if I want to aim at international uniformity of law I 
can claim, on principle at least, but one point of contact. That being 
so, I prefer to assure the strict application of my rules concerning 
succession as to those who live in my territory. I will rather suffer 
an application of foreign law to my subjects abroad than to admit its 
application to persons domiciled within my territory.' "" 

The writer of the present article called attention, on a former occa- 
sion, to the fact that Westlake's theory also lacks all support from an 
historical point of view. He there made the following observations : 15 

"Without dwelling upon the singular results that would be obtained 
if Westlake's theory that there is in reality no positive conflict but 
merely a mutual disclaimer of jurisdiction became accepted law, it is 
easy to show that it rests upon premises which lack all real support. 
His point of departure — that there is an inseparable connection 
between the rules of Private International Law of a given country 
and its internal or territorial law, so that, according to the real inten- 
tion of the legislator, the former must be deemed to define the limits 
of the latter's application, cannot be admitted. In Roman Law, for 
example, there were no rules of Private International Law in the 
proper sense; hence it would appear that the Roman legislator 
enacted laws without reference to their application in space. As to 
the modern continental countries, notwithstanding the fact that the 
science of Private International Law has been known to them since 
the fourteenth century, their present codes, almost without exception, 
contain such scant provisions relating to the Conflict of Laws that an 
assertion that the legislator in adopting a rule of internal law in 
reality defined its operation in space by the corresponding rule of 
Private International Law is an absurdity. In most instances no such 
rule of Private International Law could be found in any law. And 
with respect to England and the United States the unsoundness of 
Westlake's contention is all the more apparent for the reason that 
the law of England was fully developed before the rules relating to 
the Conflict of Laws, taken over from the continent, became a part 
thereof. With what show of reason can it be said then that the two 
are one and inseparable? Laws are enacted by a legislator without 
any thought of their operation in space. The object of the science 
of Private International Law of a particular country is to fix the 
limits of the application of the territorial law of such country, but its 

" 40 Jhering's Jahrbiicher fiir die Dogmatik, 67-68. 
15 10 Columbia L. Rev. 190, 202-204. 



Si8 YALE LAW JOURNAL 

aim is not restricted to this. It includes also the determination of the 
foreign law applicable in those cases in which the lex fori does not 
control. Otherwise the courts of the forum would be left by the 
national legislator without a guide as to the applicatory law in that 
class of cases." 

Nothing further need be added to show that the renvoi theory in the 
above form is untenable. 



THEORY OF RENVOI PROPER 

The term renvoi includes two notions : the notion of a "return ref- 
erence," that is, Ruckverweisung, and the notion of a "forward 
reference," that is, Weiterverweisung. Some of the writers would 
support the theory of renvoi proper only so far as it involves a return 
reference. The English and American courts, however, so far as 
they have recognized the renvoi doctrine, appear to have done so in its 
wider form, so as to include the possibility of a reference to the law of 
a third state. 16 

The theory of renvoi proper in its narrower form — Ruckverweisung 
— has the following meaning : 

If, for example, the English law directs its judge to distribute the 
personal estate of an Englishman who has died domiciled in Belgium 
in accordance with the law of his domicile, he must first inquire 
whether the law of Belgium would distribute personal property upon 
death in accordance with the law of domicile, and if he finds that the 
Belgian law would make the distribution in accordance with the law 
of nationality— that is, English law,— he must accept this reference 
back to his own law. 

Bentwich appears to accept the renvoi theory in this form and 
advances the following argument in its support: 

"The renvoi is in principle a reference back not to the whole law of 
the foreign country including its different rules of Private Inter- 
national Law, but simply to its internal law. Suppose a case where 
the lex fori (hereinafter called A) submits the matter to the lex 
domicilii (B), and B refers the matter back to A as the law of the 
nationality. A accepts the Renvoi, and applies its own law. 11 we 
regard first principles, we see that what has happened is this. Law is 
primarily sovereign over all matters occurring within the territory, 
and so A would ordinarily apply to the succession. A from motives 
of international comity and to secure a single system of succession, 
resigns its ordinary jurisdiction to B. But B, by reason of its 
special juristic conceptions, does not take advantage of the sacrifice or 
accept jurisdiction. A's primary jurisdiction consequently is prop- 
erly exercised, and there is no ground for A to decline to accept 

"In re Trufort (1887) 36 Ch. D. 600; Guernsey v. The Imperial Bank of 
Canada (1911, C. C. A.) 188 Fed. 300. 



RENVOI IN THE CONFLICT OF LAWS 5 '9 

the renunciation of B, since it thereby puts into operation its funda- 
mental principle of regulating every matter within the territory." 17 

It will be noted that the renvoi theory in the above form, like West- 
lake's mutual waiver of jurisdiction theory, always leads to the 
application of the ordinary, or internal, law of the forum. The 
reasoning, however, upon which it is based is very different. Accord- 
ing to Bentwich the rules of the conflict of laws of each state rest, as it 
were, upon the theory of an implied agreement among the states for 
the application of each other's law. The law of the foreign state 
is to be enforced only if the foreign state under the same circum- 
stances would enforce the law of the forum. Unless reciprocity is 
guaranteed, the law of the forum will apply its own internal law. The 
question is thus raised whether the rules of the conflict of laws rest 
solely upon the principle of reciprocity. It is submitted that they do 
not. No doubt the courts of a state have come to apply foreign law 
partly because of their desire to assure the application of their own 
law by foreign courts. But this does not mean that reciprocity must 
exist with reference to any particular rule. Indeed, in the common 
law of the United States there is only a single instance where the 
courts insist upon reciprocity in the latter sense, namely, in the 
enforcement of foreign judgments by the federal courts. 18 Consid- 
erations of justice and of expediency have played a very important 
part in the adoption of specific rules in the conflict of laws. To take 
the example which Bentwich cites for an illustration, can it be said 
that the law of domicile was adopted by the English and American 
courts in the distribution of personal property upon death solely 
because the continental courts had adopted this rule, so that reciprocity 
would be guaranteed? If this were so it would follow that if, at the 
time of the adoption of the lex domicilii in England in the distribution 
of movable property upon death, the rule of nationality had prevailed 
on the continent, as it does to-day, the English courts should have 
accepted the latter rule. It is clear, however, that they would not 
have done so, because it would not have suited English conditions. 
In a country in which private law is not unified, the law of nationality 
is an impracticable standard by which to determine private rights. 
The law of nationality being unacceptable, one of three rules might 
have been adopted — the law of the domicile of the deceased, the law of 
the situs of the property, or the internal law of the forum. Consid- 
erations of justice and expediency would probably have led to the 
adoption of the lex domicilii. Similarly, it may be shown that all 
other rules in the conflict of laws rest to a large degree upon consid- 
erations of justice, expediency, or policy. 

As the individual rules in the conflict of laws of England and the 



" Bentwich, The Law of Domicile in its Relation to Succession and the Doc- 
trine of Renvoi (1911) J 84- 
"Hilton v. Guy of (1895) IS9 U. S. 113. 



520 YALE LAW JOURNAL 

United States are not based upon the principle of reciprocity, it 
follows that these rules should, in the absence of clear reasons to the 
contrary, apply independently of the existence of like rules in the 
foreign system some provision of which is, in a given case, incor- 
porated by reference. The theory of renvoi proper in its narrower 
sense, leading as it does to the application of the internal law of the 
forum in all cases where the rules of the conflict of laws of the forum 
differ from those of the foreign law which is incorporated by refer- 
ence, has no basis unless it be a desire to apply, wherever possible, the 
law of the forum. It is nothing else than a return pro tanto to the 
doctrine of the exclusive prevalence of the internal law of the forum. 
According to the theory of renvoi proper in its wider form, that is, 
inclusive of Weiterverweisung, the lex fori hands over the question 
to the legal system of the foreign country whose law is incorporated. 
The judge of the forum is to decide the case, therefore, as the courts 
of the foreign country would decide it. The English and American 
cases, so far as they sanction renvoi, have expressed it in this form. 
Their attitude appears clearly from the opinion of Sir Herbert Jenner 
in Collier v. Rivaz, where the learned justice, speaking of Belgian law, 
said : "The court sitting here . . . decides as it would if sitting in 
Belgium." 19 It must be noted, however, that the statement made by 
Sir Herbert Jenner is not to be taken literally. The English court 
does not actually decide the case as the Belgian court would. An 
illustration will make this plain. Suppose that an English judge is 
called upon to distribute the personal estate of an Englishman whose 
domicile at the time of his death was in Belgium. The English law 
would direct the judge to apply the lex domicilii, that is, the law of 
Belgium. If Sir Herbert Jenner's statement is to be taken in its literal 
meaning, the English judge would be compelled to ascertain how 
the Belgian judge would decide the case. Upon investigating 
the law of Belgium he would find that it would distribute the 
property in accordance with the principle of nationality, that is, in 
accordance with English law. He would also discover that the courts 
of Belgium have followed the renvoi theory consistently since 1881, 20 
and that in consequence the distribution would actually be made by 
them in accordance with the Belgian statute of distributions. The 
English judge should consequently apply the same statute of distribu- 
tions. Although the English judge purports to sit in Belgium, he 
would, as a matter of fact, apply the English statute of distributions. 
He would not decide the case as the Belgian judge is obliged to do 



a (1841) 2 Curt Eccl. 855, 862-63. The italics are those of the present writer. 

"Bigwood v. Bigwood, App. Brussels, May 14, 1881 (Belgique Judtcimre 
(1881) 758). See also Trib. Civ. Brussels, March 2, 1887 (14 Clunet, 748) ; 
App. Brussels, Dec. 24, 1887 (D. 1889, 2, 97) ; Trib. Nivelles, Feb. 19, 1879 
(Belgique Judiciaire (1880) 982) ; Trib. Civ. Brussels, Dec. 1, 1894 (23 Clunet, 
895) ; Trib. Civ. Antwerp, March 16, 1895 (23 Clunet, 655)- 



RENVOI IN THE CONFLICT OF LAWS 5ai 

under Belgian law, ignoring the existence of the renvoi doctrine in the 
Belgian law. The reason why the renvoi doctrine of the foreign state 
is ignored is very plain. No decision could be reached if both judges 
should attempt to apply the renvoi doctrine actually existing in the 
foreign system. Each law would refer the judge to the law of the 
other state. There would thus be an endless series of references from 
which there is no escape. 21 

Because of this, renvoi is understood by each judge as a return 
reference simply to the internal law of his country and not to the whole 
of its law. It is not so certain, however, that the English courts would 
ignore a foreign renvoi doctrine in the case of a forward reference 
(W eiterverweisung) , as distinguished from a return reference (Ruck- 
verweisung) , like that just considered. The renvoi doctrine appears 
to be a mere expedient to which the courts resort in order to justify the 
application of their own law. Hence, if the foreign law (of the state 
of X), instead of directing the English judge back to his own law, 
should refer him to the law of another foreign state (state of Y), it is 
quite possible that he might state the conflict of laws rules of X (now 
assumed to be referred to by English law in a renvoi sense in accord- 
ance with the actual law of X), if by so doing he might be enabled to 
apply his own local law. Suppose, for example, that the law of the 
state of X has adopted the law of nationality in the distribution of 
personal property upon death, and that the law of the state of Y makes 
the distribution in accordance with the law of the situs; also that the 
decedent was a subject of the state of Y but was domiciled at the time 
of his death in the state of X. The property to be administered being 
in England, the English judge might say : "The law of the state of X 
which I am directed to apply, recognizing as it does the doctrine of 
renvoi, is referring me to the law of the state of Y as a whole, inclusive 
of its rules of the conflict of laws." This mode of reasoning would 
enable him to apply the statute of distributions of the forum. 

The suggestion might be made that Sir Herbert Jenner used 
merely an inapt expression in characterizing the renvoi theory of the 
English courts, and that Bentwich's explanation given above 22 is a 
more accurate statement of the process. The two theories are, how- 
ever, fundamentally different. Bentwich's theory necessarily leads to 
the application of the law of the forum, while the English courts appar- 
ently sanction the renvoi doctrine in its wider form, that is, inclusive 
of Weiterverweisung.™ Such a forward reference can be justified 
only if the final decision in the case is handed over to the foreign law. 
Bentwich's theory is opposed to this. 

"Westlake suggested the mutual waiver of jurisdiction theory for the very 
purpose of avoiding this endless series of references : Westlake, Private Inter- 
national Law (5th ed.) 32-34; supra, p. SH- 

"Supra, p. 518. 

* See Re Trufort (1887) 36 Ch. D. 601 ; Guernsey v. The Imperial Bank of 
Canada (1911, C. C. A.) 188 Fed. 300. 



522 YALE LAW JOURNAL 

The untenability of the theory of renvoi proper in its wider form will 
appear more clearly if its real meaning be set forth in another manner. 
What actually happens is this : When the English judge in the above 
case seeks to ascertain the statute in accordance with which he is to 
make the distribution, he is told by the English law: "I cannot tell 
you; go and ask the Belgian law." All the English law will do for 
him is to point out the country which is to give him the final answer. 
What is true in this case will happen in all cases in which the English 
judge is called upon to apply foreign law. In no case will the English 
law answer any question directly. It will always delegate the task 
to another state. 

Should the Belgian courts have accepted the renvoi doctrine in the 
same form as the English courts, the Belgian judge again would get 
no final answer to his questions from the Belgian law, but would be 
told to ascertain it from the English law. 

It is evident, however, that if the English rules of the conflict of 
laws do not point out any rule of internal law, but merely point out 
the country whose law is to decide the case, and if the Belgian rules 
of the conflict of laws are to be understood in the same sense, no 
direct answer can be found in either system, whether the question 
be asked by a national judge or by a foreign judge. There would be 
an endless chain of references, as we have already seen. As the doc- 
trine is actually worked, there is no rule in the English law which will 
enable an English judge to reach a direct decision, but such a rule is, 
more or less arbitrarily, assumed to be found when a foreign judge is 
called upon to apply English law. The same inconsistency would be 
true of Belgian law. It would not point out a statute of distributions 
to the Belgian judge, but would be deemed to do so where an English 
judge is called upon to apply Belgian law. 

The writer would submit that the rules of the conflict of laws of the 
forum should be regarded as incorporating by reference only the 
internal law of the foreign state and not its rules of the conflict of 
laws. The moment it is granted that the adoption of the rules of the 
conflict of laws rests upon considerations of justice, expediency, 
and policy, it follows that each state must exercise its own judgment 
in the matter and determine the matter finally. This it fails to do 
when it adopts the theory of renvoi proper in its wider sense. Many 
writers have argued that the acceptance of the renvoi doctrine amounts 
to an abdication on the part of one sovereign in favor of another. 
Bentwich denies this. He says : 25 
"It is said again that the renvoi is 'a denial of Private International 

"Audinet, s. 1899, 2, 105; Bartin, 30 Darras, 295; 1 Gierk % D ^ C ff r ^' 
recht, 214; Klein, 27 Abchiv fur burgerliches Recht, 273; Labbe, 12 Ctmrer, 
12; Laine, 23 Clunet, 256; 3 Darras, 334-335! Laurent, s. 1881, 4, 42; Fotu, 
La question du renvoi du droit international pnvS, 319. 321 • 

" The Law of Domicile, 186-187. 



RENVOI IN THE CONFLICT OF LAWS 523 

Law and of the internal autonomy of states.' By this apparently is 
meant that where a Court accepts the renvoi, it puts into force the prin- 
ciple of a foreign country for settling questions of conflict, and 
renounces its own principle. Thus in a particular case the English 
Court might apply the law of the nationality in place of the law of the 
domicile to the movable succession of a person who died abroad (cf. 
Re Trufort and Re Johnson). But to this it may be answered (1) 
that the renvoi is applied by way of exception, and, as already 
remarked, to secure the practical object for which private international 
law was designed; and (2) that it is a more serious denial of the 
autonomy of States to compel the operation of a foreign law upon a 
matter where it refuses to apply itself, than to apply the municipal 
law because the foreign law refuses jurisdiction. For example, if a 
French Court were to apply the English statute of distributions to the 
intestate succession of an Englishman dying domiciled in France, 
it would be really misapplying the English law to a case where the 
English legislator never meant it to operate. Like most of the objec- 
tions to the renvoi, this argument against it is purely academic, based 
entirely on theoretical premises, and entirely regardless of practical 
consequences. And even on the ground of the pure theory of sov- 
ereignty, it may be pointed out that an English Court has no right to 
assume sovereignty, and decide what part of the foreign law is to be 
applied, when the person whose succession is in question is not sub- 
jected to it either ratione personae or ratione territorii." 

In reply to Bentwich it may be said that there are no practical 
advantages to be derived from the adoption of the renvoi doctrine, as 
will be shown later. 26 The second argument advanced by Bentwich is 
but a repetition of the arguments advanced by von Bar and Westlake 
in favor of the mutual disclaimer of jurisdiction theory. Its unsound- 
ness has been pointed out by Professor Buzzati. 27 To say that, when 
the French court applies the English statute of distributions to the 
intestate succession of an Englishman dying domiciled in France, it is 
misapplying the English law to a case where the English legislator 
never meant it to operate, is to misstate the whole problem. The very 
equality of states makes it impossible for one state to yield to the 
wishes of another state in this respect. France, therefore, is perfectly 
within her rights when she directs her judges to apply English law in 
the above case. And, contrary to Bentwich's assertion, the English 
courts are equally within their rights should they apply French law. 
Whether they do so ratione personae or ratione territorii or by virtue 
of any other principle cannot be questioned by anyone as long as no 
established principles of international law are violated. Unless the 
action of the legislature of a state or of its courts would amount to a 
"fundamental" denial of justice to the citizens of another sovereign, 
each state is free to act as it may deem best.* 8 

26 Infra, p. 524 et seq. 

17 Supra, p. 516. 

28 See, for a full discussion of "fundamental" denial of justice to aliens, 
Borchard, Diplomatic Protection of Citizens Abroad (1915) 13. 178, 196-199, 
330-343. See also, Kahn, Uber Inhalt, Natur und Methode des intemationalen 
Privatrechts, 40 Jhering's Jahrbiicher fur die Dogmatik, 1, 40-41. 

36 



524 YALE LAW JOURNAL 



III 

Should anyone be inclined to brush the foregoing arguments aside 
as "purely academic," 29 let us consider the practical consequences to 
which the renvoi theory would lead. The chief object of the science 
of the conflict of laws being to bring about international uniformity of 
law, let us see whether the renvoi theory would be conducive to 
such an end. 

According to the mutual waiver of jurisdiction theory, whenever the 
rules of the conflict of laws of the forum diverge from those of 
another state whose law has been incorporated by reference, the ordi- 
nary or internal law of the forum prevails. This result follows also 
from the theory of renvoi proper in its narrower form, as presented 
by Bentwich. Instead of promoting uniformity of decision in the 
different countries, the above theories will have the very opposite 
effect. If the renvoi doctrine be rejected, there is a possibility, it is 
true, that one state may distribute the personal estate upon death in 
accordance with the law of domicile, and another state, in accordance 
with the law of nationality. Two different statutes may thus become 
applicable. 30 But if renvoi in either of the forms just mentioned be 
accepted, the property will be distributed in accordance with as«many 
statutes as there are states before whose courts the question may 
come. Bentwich again takes a contrary view and says : 

"The objection, however, is a figment of theory, and is not based on a 
solid practical difficulty. Even if no rule were established by an 
international convention for the application of the Renvoi m any 
particular case the English Court or the French Court would know 
whether the other had already dealt with the succession. If this were 
so it would adopt the principle already applied to the succession, and 
apply either its own rules of private international law or the doctrine 
of renvoi so as to subject the whole moveable succession to one law. 
Thus in the case supposed, if the English Court, first seised of the mat- 
ter had accepted the renvoi and applied English law to the English 
assets of the deceased, a French Court would naturally apply English 
law to the French assets according to its own rules." 31 

Instead of being a figment of theory, what has been set forth above 
represents the actual state of the decisions. Bentwich does not cite 
a single case in which a court has resorted to renvoi in one case and 
refrained from using it in another solely with a view to bringing 
about the application of the same ultimate rule of decision. The 
writer is convinced that no such cases can be found in any country. 

One or two examples will show the extraordinary resul ts to which, 

9 The Law of Domicile, 186. ... r m« . 

"There is a possibility that the law of a third state might become applicable, 
for example, if property should be left in a state which has adopted the law of 
the situs for the distribution of personal property upon death. 

31 The Law of Domicile, 183. 



RENVOI IN THE CONFLICT OF LAWS 525 

under the above theory, the substitution of the law of the forum for 
the foreign law may lead. Let us assume, in the first place, that an 
Englishman who is domiciled in Italy makes a contract in Italy, and 
that suit is brought in the United States for breach of the contract, 
the defense being lack of capacity. Let us assume also that England 
applies the law of domicile, 32 Italy the law of nationality, and the 
United States the law of the place where the contract is made as the 
rule governing capacity to contract. According to Westlake's theory 
the law of the forum, that is, American law, would govern the ques- 
tion, although its only connection with the case is the fact that suit is 
brought there. 

Assume, in the next place, that according to the law of a given 
forum (state of X), the law of the situs (state of Y) would govern 
the validity of a testamentary trust, but that under the law of the 
situs the national law of the testator (state of Z) controls. The 
internal law of the state of X would determine the validity of the 
trust; and that solely because suit is brought there and because 
the law of the state of Y, which the law of the state of X incorporates, 
has a different rule in the conflict of laws. 

There is no escape from consequences such as the above under the 
mutual disclaimer of jurisdiction theory as it has been developed by 
Westlake; and these prove the impossibility of accepting the renvoi 
theory in this form. To the extent that this theory is applied, it means 
a return to the exclusive application of the ordinary or internal law of 
the forum, and a sacrifice of all that has been gained during the last 
century in the development of the rules of the conflict of laws. 

What has been said of the practical consequences to which the 
mutual disclaimer of jurisdiction theory leads is true also of the 
theory of renvoi proper in its narrower sense. According to the latter 
theory, whenever the foreign law declines to accept the jurisdiction 
which is offered to it by the law of the forum, the latter will control. 
As has been stated, there is nothing in the suggestion made by Bent- 
wich that the renvoi theory may be invoked by the court for the pur- 
pose of bringing about uniformity of decision. No court, legislator, 
or writer other than Bentwich, so far as the present writer is aware, 
has ever suggested that a judge should apply, now the internal law 
of a foreign country, now its law as a whole, with a view of harmo- 
nizing his decision with the decision that has already been rendered 
in the case by a foreign court. 

The doctrine of renvoi proper in its wider sense includes, as we have 
seen, the possibility of a forward reference (Weiterverweisung) , and 



" Whether the English law would apply the lex domicilii as regards ordinary 
business contracts is doubtful. As to such contracts the law of the place where 
the contract was made may control. See Male v. Roberts (1800) 3 Esp. 163; 
Dicey, Conflict of Laws (2d ed.) Rule 149, exception 1, p. 538; Cheng, Rules 
of Private International Law Determining Capacity to Contract, 70-72. 



526 YALE LAW JOURNAL 

may thus lead to the application of the internal law of a third state. 
In so far as the application of the theory of renvoi proper in its wider 
form leads to a return reference (Riickverweisung) , that is, to the lex 
fori, it has exactly the same disadvantages as the other theories. 
Instead of bringing about international uniformity of decision, it will 
cause the greatest disharmony possible by subjecting the determination 
of each case to the internal law of the forum. The English judge 
in the case above put 33 would distribute the personal property in 
accordance with the English statute of distributions, while the Belgian 
judge would apply the Belgian statute of distributions. If the case 
should arise in New York, the judge would apply the New York stat- 
ute of distributions. 

In so far as the application of the theory of renvoi proper in its 
wider form leads to a forward reference (Weiterverweisung) , it con- 
stitutes no gain whatever. Suppose that two Englishmen who are 
domiciled in the state of New York enter into a contract in Italy. 
Suit for breach of the contract is brought in New York, and the 
defense is lack of capacity. Which law should govern? If renvoi 
is rejected, the New York judge would apply the lex loci contractus, 
that is, the ordinary Italian law relating to capacity. England would 
apply New York law as the lex domicilii of the parties, and Italy 
would apply the English law as the lex patriae of the parties. If, on 
the other hand, these countries recognize renvoi proper in the wider 
sense (inclusive of Weiterverweisung), the New York courts would 
apply the whole of Italian law {lex loci contractus) and, being directed 
by the Italian rule of the conflict of laws to apply the lex patriae, 
would decide the question in accordance with the English law relating 
to capacity. The English judge would apply the New York law 
(lex domicilii) inclusive of its conflict of laws, and, being directed by 
the law of New York to apply the lex loci contractus, would determine 
the case in accordance with the Italian law relating to capacity. The 
Italian judge would apply the whole of the English law (lex patriae), 
and, being directed by the English judge to apply the lex domicilii 
would hold that the law of New York relating to capacity would con- 
trol the case. . . . 

It is apparent, therefore, that the theory of renvoi proper in its 
wider form leads to no greater uniformity than is attained by rejecting 
the doctrine. We have seen, moreover, 3 * that the doctrine of Weiter- 
verweisung might be worked by the courts so as to lead to the appli- 
cation of the local law of the forum. 35 



" Supra, pp. 518, 520. 

«The r New S york judge might reason that the Italian rule ofthe conflict 
of laws was to be understood as referring him to the l**/*'™'^ ^ 
lish law, inclusive of its rules of the conflict of laws, and that he must decide 
he case in accordance with the law of domicile, that is, New York law. The 



RENVOI IN THE CONFLICT OF LAWS 527 

Whatever form the renvoi doctrine may take, once it is recognized 
it is difficult if not impossible to limit its operation. In every case 
where the law of the forum incorporates the law of a foreign 
country, whether it be the law of the domicile, the law of the situs of 
the property, the law of the place where the marriage or contract was 
entered into, the law of the place where the contract was to be per- 
formed, the law of the place where the tort was committed or the law 
where the marriage was dissolved, or the law where the adoption 
proceedings, or acts upon which legitimation is based, took place, or 
any other law, the point might be urged that the law of the country 
referred to had a different rule on the subject. In the case where the 
law of the domicile and the law of nationality come into collision, it 
may be easy enough to ascertain the fact that the foreign country has 
accepted the principle of nationality; but the task of finding and 
understanding in all other cases the foreign rule of the conflict of laws 
covering the case in question is indeed Herculean in its nature. 38 

A court may be inclined to accept the renvoi doctrine readily in 
cases where it leads to the application of its own law, but once it is 
accepted it must, if logically consistent, be applied under the theory 
of renvoi proper in its wider form — the theory of the English courts — 



English judge might say that the rules of the conflict of laws of New York 
referred to the lex loci contractus, that is, Italian law, inclusive of its rules 
of the conflict of laws, and that he should determine the case, therefore, in 
accordance with the law of nationality, that is, English law. The Italian judge 
in the same way might say that the English rule of the conflict of laws referred 
him to the lex domicilii, that is, New York law, inclusive of its rules of the 
conflict of laws, and that he must decide the case in accordance with the lex 
loci contractus, that is, Italian law. 

38 If it be recalled how uncertain the law is in most states in this country as 
regards the rule governing the validity and obligation of contracts, it will be 
easy to realize what the state of the law must be with respect to the conflict of 
laws in countries not belonging to the Anglo-American group, in which the doc- 
trine of stare decisis is unknown. 

Even though the foreign rule is perfectly clear and definite it is frequently 
misunderstood. The case of Lando v. Lando (supra, n. 3) furnishes a striking 
illustration. The parties stipulated that the German law applicable to the case 
was as follows : 

"Art. 13. The contraction of a marriage (otherwise translated 'entering 
into'), even if only one of the parties is a German, is determined in respect of 
each of the parties by the laws of the country of which he (or she) is a 
subject (otherwise translated 'to which each respectively belongs'). The same 
rule applies to an alien who concludes a marriage within the empire. . . . 

"The form of a marriage which is concluded within the empire is determined 
exclusively by German law." 

The last paragraph quoted clearly indicates that no marriage celebrated in 
Germany will be regarded as valid unless it is entered into in the form prescribed 
by the German law relating to marriage. See Planck, Biirgerliches Gesetzbuch 
(3d ed.) 50. The Supreme Court of Minnesota finds, however, that "the 
proper interpretation of the provision abounds in doubt and uncertainty," and 
thus feels justified in upholding the marriage by invoking the rule of interpreta- 
tion, semper presumitur pro matrimonia. 



538 YALE LAW JOURNAL 

whether it sends the judge back to the law of his own country or sends 
him forward to the law of a foreign state. Whether he is led in the 
one direction or in the other, he must inquire into the foreign system 
of conflict of laws ; and, after he has done this, which in a large pro- 
portion of cases involves a task far greater than that of applying the 
internal law of a foreign country, he may still be compelled to apply 
the internal law of a foreign state. This fact alone should be suffi- 
cient to deter the courts from adopting the renvoi doctrine in the 
above form. 

So far as the effect of the doctrine of renvoi proper in its wider 
form upon the subject of the conflict of laws is concerned, it must be 
definitely understood that it will render the whole subject, which in its 
very nature is full of uncertainty, still more uncertain. The difficulty 
is not confined to the judge. The lawyer will have much greater diffi- 
culty in advising his clients as to their rights. Before he can do so, he 
must investigate three things : First, the rule of the conflict of laws 
of his country governing the case ; second, the foreign rule of conflict 
of laws which is incorporated; and third, in many cases, the pro- 
visions of the internal or ordinary law of some foreign country. Take 
the simplest case of a trust in foreign real estate. The moment renvoi 
proper in its wider form is recognized, the primary question would no 
longer be whether the law of trusts of the situs of the property should 
recognize the validity of such trust, but what the rules of the conflict 
of laws of the situs are; and the latter may refer the judge to the law 
of another country, for example, to the national law of the owner." 
In other words, in all cases the rights of the parties will depend not 
alone upon the rules of the conflict of laws of the forum, but also upon 
those of the foreign country whose law is incorporated by the law of 
the forum. A greater state of uncertainty in the law than that which 
arises from the theory of renvoi proper in its wider form is difficult to 
conceive. The general recognition of the renvoi doctrine in either of 
the forms outlined above would be fatal to the harmonious develop- 
ment of the rules of the conflict of laws in the future. No proper 
system of the conflict of laws can be built up among the civilized 
nations as long as this doctrine remains. It cannot be built up on the 
mutual waiver of jurisdiction theory, nor upon the theory of renvoi 
proper in its narrower form, because they imply a reversion pro tanto 
to the exclusive application of the local or internal law of the forum, a 
seizing of every opportunity on the part of the courts to apply their 
own law. It cannot be built up on the theory of renvoi proper in its 
wider form, because the latter implies a shirking of all direct respon- 
sibility on the part of each state. According to the latter theory, a 
state is not bound to give a final answer to any question in the conflict 



" See the unreported case of Re Baines, decided March 19, 1903, by Farwell, 
J., given in Dicey, Conflict of Laws (2d ed.) 723. 



RENVOI IN THE CONFLICT OF LAWS 5*9 

of laws, but is regarded as having performed its full duty by handing 
a power of attorney for that purpose to another state. It is only 
when each state, through its legislature or courts, conceives itself 
obliged to assume direct responsibility in the matter, and learns to 
discharge its duty with a view to promoting international justice 
rather than petty and selfish ends of its own, that a proper basis will 
be created for any real progress in the science of the conflict of laws. 
The renvoi doctrine, however, in whatever form it be adopted, tends in 
just the opposite direction. Whatever strength this doctrine may 
gain temporarily because of the equivocal meaning of the term "law of 
a country" and the natural predisposition on the part of judges to 
apply their own law, there can be no doubt of its ultimate overthrow. 
Its days ought to be few after its deceptive character is fully 
understood. 

IV 

The conclusion having been fully established that the renvoi doc- 
trine cannot be accepted as a general principle in the conflict of laws, 
we may briefly consider certain exceptional cases in which a recogni- 
tion that the lex fori should incorporate the foreign law inclusive of 
its rules of the conflict of laws may be either necessary or expedient. 

(i) It has been found necessary to accept the renvoi doctrine in 
the framing of international conventions as the only means of bring- 
ing together nations with different rules in the conflict of laws. 38 

(2) Von Bar has called attention to a certain class of cases in 
which on grounds of justice it is necessary, it would seem, to recognize 
renvoi or something akin to it. He gives the following examples : 39 

"Two subjects of the State of X are married in the State of Y, 
where they are domiciled. The validity of the marriage is questioned 
in the State of Z on the ground that the parties had no capacity to 
enter into the marriage under the provisions of the laws of the State of 
Y relating to marriage, though it is conceded that they possessed such 
capacity under the national law with respect to marriage. The laws 
of the States of X and Y agree that the lex patriae shall govern the 
essentials of a marriage. The law of the State of Z, on the other 
hand, applies the lex loci celebrationis. Should the courts of the 
State of Z regard the marriage as valid? 

"A, a citizen of the State of X, dies domiciled in the State of Y. 
The laws of the States of X and Y agree that B is entitled to A's per- 
sonal estate in accordance with A's national law. Subsequently B's 
heirship is contested in the State of Z, in which State the lex domicilii 
is held to govern the distribution of personal property upon death. 
Should B's title be recognized by the courts of the State of Z ?" 

88 See Art. 1 on The Hague Convention of June 12, 1902, relating to marriage, 
and Art. 74 of the Uniform Law of The Hague Convention of 1912, relating to 
bills of exchange. 

89 8 NlEMEYER, I83-184. 



53° YALE LAW JOURNAL 

Von Bar would answer both questions in the affirmative. He sub- 
mitted the following rule, intended to cover the above class of cases, 
to the Institute of International Law: 

"Provided that no express provision to the contrary exists, the 
court shall respect .... 

"(b) The decision of two or more foreign systems of law, pro- 
vided it be certain that one of them is necessarily competent, which 
agree in attributing the determination of a question to the same sys- 
tem of law. 40 

A motion embodying the above proposition was submitted to the 
Institute of International Law, but its consideration was postponed 
because the motion was deemed to embody something quite distinct 
from the renvoi doctrine in general. 41 

The rule in the form above stated actually accepts the doctrine of 
renvoi proper, provided ( i ) that the foreign countries with which the 
transactions may be connected have the same rule in the conflict of 
laws; (2) that the law of one of them be applicable under the law of 
the forum. Thus limited, the renvoi doctrine not only leads to results 
which are obviously just, but also tends to promote international uni- 
formity in the decisions. The statement in Guernsey v. The Imperial 
Bank of Canada quoted above, 42 may be supported on this ground. 

(3) Because of the favor shown to marriages, the lex loci cele- 
brationis might be deemed to incorporate the foreign law as a whole 
for the purpose of sustaining a marriage, as in the case of Lando v. 
Lando* 3 but not to defeat it. It would be preferable, however, if this 
result were reached through the adoption of an alternative rule in the 
conflict of laws. If, for example, the law of Minnesota, instead of 
saying that the marriage must satisfy the lex loci celebrationis, had 
said that a marriage should be upheld if it satisfied either the law of 
the place where it was entered into or the law of the domicile of the 
parties, it would not have been necessary in Lando v. Lando to resort 
to the renvoi doctrine in order to render the marriage valid. 

(4) It would seem that, by reason of the permanent and exclusive 
physical control which a nation has over immovable property within 
its territory, the validity of a conveyance of such property should be 
determined in accordance with the law of the situs as a whole. It 
would follow that if the law of the situs authorized the execution of a 
deed or will in the form prescribed by the law of the place of execu- 
tion, its validity should be recognized everywhere. Similarly, if the 
law of the situs should determine the capacity of a party to dispose of 
such property by deed or will in accordance with the national law of 



40 18 Annuaire, 41. 
41 18 Annuaire, 186-187. 
42 Supra, n. 2. 
" Supra, n. 3. 



RENVOI IN THE CONFLICT OF LAWS 53' 

its owner, the courts of all countries should apply this rule. This 
might lead to a return reference to the law of the forum or to a for- 
ward reference to the law of another country. It might involve even 
a second reference, for example, if the national law of the owner of 
the property should determine the question of majority in accordance 
with the law of domicile. 

The question may be asked: Does the recognition of the renvoi 
doctrine as regards conveyances of immovable property not lead to the 
same insuperable difficulties pointed out in the general discussion? 
How can these cases be taken out of the general rule without destroy- 
ing the rule itself? The writer is of the opinion that because of the 
permanent and exclusive physical control which a state has over all 
immovable property within its territory, which it does not possess 
with reference to movable property or with respect to persons, such 
an exception might be justified. By reason of such control the courts 
of most countries would probably be willing to look primarily to the 
law of the situs of the immovable property and to decide the questions 
actually as the courts of the situs would. In other words, it would 
seem that in the conveyance of immovable property there is a reason- 
able basis for the expectation that the adoption of the renvoi doctrine 
would promote international uniformity of decision. 

Uniformity might be reached without recourse to the renvoi doc- 
trine if all countries would adopt alternative rules in their systems of 
the conflict of laws. As regards the formal execution of a deed or 
will, the general acceptance of the rule locus regit actum as an alter- 
native rule would be sufficient. With respect to capacity and the sub- 
stantive validity of wills and deeds, international uniformity could 
be brought about only in case all countries were willing to sustain 
such instruments if they satisfied either the law of the situs or the 
national law of the owner. 44 Under present conditions, the renvoi 
doctrine would appear to be the only practicable means by which such 
uniformity can be attained. 

APPENDIX 
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ENGLISH 

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Bate, Th.: Notes on the Doctrine of Renvoi in Private International Law 
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Beale, Joseph H. : A Treatise on the Conflict of Laws or Private International 
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"If the law of some countries should happen to apply primarily the law of 
the domicile or the law of the place where the deed or will is executed, complete 
uniformity would not be attained unless all countries accepted these rules also 
as alternative rules. 



53* YALE LAW JOURNAL 

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Westlake, John: Private International Law (5th ed.) 25-42. 

FRENCH 

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droit international privi, 30 Clunet, 481; 31 ibid. 551. 

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RENVOI IN THE CONFLICT OF LAWS 533 

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terre, 9 Darras, 231-237. 

Surville, F. : La question du renvoi dans les litiges internationaux (1899) 28 
Revue Critique, 215. 

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Wagner, Albert: Note, Dalloz (1910) 2, 145. 

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Westlake, John : Note sur les conflits entre les dispositions legislatives de 
droit international privi, 18 Annuaire, 35. 



GERMAN 

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534 YALE LAW JOURNAL 



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